The remedy under Section 163-A of the Motor Vehicle Act, 1988 is available only to individuals with income up to Rs.40,000 per year.

1. Heard the learned advocate appearing for the appellant and the learned advocate for the respondent Nos. 1 and 2.

2. When the civil application for interim relief came up before this Court, the learned advocate appearing for the appellant submitted that the claim petition filed by the respondent Nos. 1 to 4 under Section 163-A was not maintainable in law inasmuch as even according to the case made out by the said respondents, the income of the deceased was more than Rs.40,000/- per year. In view of this submission, by consent of the counsel appearing for the parties, the appeal is taken up for final disposal.

3. According to the assertion made in the claim petition filed by the first and fourth respondents, the age of the deceased at the time of accident was 36 years and he was drawing a salary of Rs.7211/- per month. The Apex Court has held that the remedy under Section 163-A of the said Act has been created for a specified class of the society having income upto Rs.40,000/- per year. The earlier view was that it is possible to notionally bring down the income of the deceased to Rs.40,000/- for bringing the claim petition within the purview of Section 163-A of the said Act. However, now the law on this point is very clear and the remedy under Section 163-A is available only to those, whose income is upto Rs.40,000- per year. The claim petition of the others will have to be decided in accordance with Section 166 of the Motor Vehicle Act, 1988. In the order dated 19.6.2008 in First Appeal No. 979 of 2007, this Court has taken a view that the such claim petition under Section 163-A is not maintainable.

4. The learned counsel appearing for the first and second respondents submitted that in the event the Court is of the view that the claim petition under Section 163-A is not maintainable, the same may be allowed to be converted into the claim petition under Section 166 of the said Act. Relying upon the decision of this Court in the case of New India Assurance Co. Limited Vs. Rukhminibai w/o Ashok Gore (First Appeal No. 1349 of 2004), the learned counsel submitted that the Division Bench of this Court has held that the conversion of a claim petition cannot be allowed. In first Appeal No. 979 of 2007, this Court after considering the aforesaid decision of the Division Bench has held that the Tribunal as well as this Court always has a discretion to allow the conversion of a claim petition under Section 163-A into a claim petition under Section 166 of the said Act.

5. Considering the facts of the present case, the said discretion will have to be exercised in favour of the first and second respondents.

6. The learned counsel appearing for the appellant submitted that the appellant will be burdened with the interest under Section 171 of the said act from the date of filing of the claim petition under Section 163-A of the said act though the said petition was not maintainable. It is well settled that the power to grant interest under Section 171 of the said act vested in the Tribunal is discretionary. While exercising the discretion, the Tribunal is bound to take a note of the said contention.

7. Hence, I pass the following order:-

i) The impugned judgment and award dated 23.10.2007 is quashed and set aside and the claim petition being M.A.C.P. No.118 of 2004 is restored to the file of the Tribunal.

ii) The parties are directed to appear before the Tribunal on 11th August,2008. On an application being made by the claimants, the learned member of the Tribunal will allow the claimants to carry out the amendment to the claim petition for the purpose of converting the same into the petition under Section 166 of the Motor Vehicles Act, 1988.

iii) It will be open for the appellant to file written statement or additional written statement within a period of six weeks from the date of appearance.

iv) The Tribunal will permit the parties to lead further evidence in the matter and after

considering the evidence which is already adduced and the